Mehboob Sultan Vs Managing Director

Judgment Sheet w IN THE PESHA WAR HIGH r ABBOTTABADBEN(

JUDICIAL DEPART/VIE)

W.P.No.429-A/2012

JUDGMENT

Date of hearing......10.7.2017.......................................................... Petitioner (Mehboob Sultan) by Haji Sabir Hussain Tanol4 Advocate. Respondent (Managing Director etc) by Sardar Shaukat A11, Advocate.

SYED ARSHAD ALl, J:- Mehboob Sultan,Assistant Manager (Audit) seeks the constitutional jurisdiction of• this Court praying that:

"A. Direct the respondents to pay forthwith salaries, allowances and all other benefits of the posts of Deputy Director Accounts BPS- 18, since 30.3.1998 with mark-up/interest till its realization,

B. Be imposed special cost upon

respondents by not resolving the matter till date, and/or

ç \ C. Any other writ, order, direction deemed i \.proper and just may also be

2.Brief but essential facts of the case are that on 01.6.1978, the petitioner, joined the respondents,

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Forest Development Corporation "FDC" as Assistant in BPS-Il. On 18.11.1987 he was promoted as Superintendent in BPS- 16, whereas he was further promoted as Assistant Manager BPS- 17 in the year 1991.

Consequent upon termination of services of Mr.Muhammad Saleem Awan, the then Deputy Director (Accounts) Siran-Kaghan Forest Project Abbottabad through Golden Hand Shack Scheme on 30.3.1988, Mr.

Meboob Sultan, Assistant Manager, the Petitioner who was then working in the head office of FDC was transferred and posted as Deputy Director Accounts (BPS-18) but in his own pay and scale in the said project through letter FDC/AdmnI3 137 dated 30.3.1998. The record ftirther shows that the petitioner had been performing his duties in the project as Deputy Director BPS-18 till 30.6.2008. The respondents in their comments have claimed that the services of Mr.

Muhammad Saleem Awan, Deputy Director (Accounts) were terminated through Golden Hand Shake in the year

998.The petitioner, who was then working as Assistant CC3 cj

Manager (Audit) in the BPS- 17, was transferred and posted as Deputy Director (Accounts) in his own pay and

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scale in the Siran-Kaghan Forestry Project, Abbottabad vide office order No.FDC/Area Manager/3 137 dated

30.3.1998. One of the conditions of his posting as Deputy Director (Accounts) was that it would not confer any right of seniority or promotion on the petitioner in higher scale BPS-18. The petitioner accepted his posting on the said terms and conditions and worked against the said post till 30.6.2000 when the project was closed.

Thereafter the petitioner was retransferred and posted in the head office in his own Grade i.e. BPS-17 till he retired from service with effect from 02.1,2011.

3.The bald assertion of the respondent

corporation that the petitioner held the post of Deputy Director till 30.6.2009 is without any documentary evidence, whereas on the other hand, the petitioner has placed on file his pay fixation slip which shows that he held the position of Deputy Director in Respondents Corporation till 30.6.2008. Now the moot question for determination before this court is whether the petitioner is entitled to the pay and allowance of the post of Deputy Director which he held from 30.3.1998 till 30.6.2008. We can find answer to this question in nuuut p

II 1978 SCMR 289, wherein it was held;

"If an employee is promoted to officiate in a be.C09 higher post, involving higher responsibility, he must be held to be entitled to the

minimum pay of the grade of the said higher office."

The objection of the respondents that once petitioner has assumed charge pursuant to the order dated 30.3.1998, wherein it was mentioned that his posting as Deputy Director Accounts in his own pay and scale, he cannot approbate and reprobate is not legally tenable.

There is nothing on record that it was the petitioner who had requested for the said post nor there is any assertion by respondents that the petitioner was not eligible to hold the post of Deputy Director. In S/i. Amar Mafloon Vs.

Government of Pun Jab 1992 SCMR 1869, it has been laid down "that Civil servant worked against post a higher grade and discharged functions of such post, which entitled him to the pay attached to the said posts.

Incorporation of condition in civil servant's posting order he was adjusted against his own pay and grade, be inconsequential and not a bar for him to claim higher grade pay. Civil Servant was, thus entitled to the pay of higher post during the period he worked against the same".

The aforesaid view has been reaffirmed

14, and followed in Abdul Hamid and others Vs. Chief Secretary, NWFP and others 1998 PLC CS 1468,

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K/tars/teed An war Vs. Province of NWFP throu2h Chief Secretary and another 1999 PLC (CS) 225, Abc/uI Sattar Vs. Distrkt Accounts Officer, Bahawalpur 2012

PLC (CS) 65.

6.In the light of above referred factual and legal position, we hold that the petitioner is entitled to draw the salaries and allowances in BPS- 18 from 30.3.1998 till 30.6.2008. Accordingly this writ petition is allowed in the aforesaid terms.1

Announced.

Dt. 10.7.2011 Aftab/*

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